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Crimes against humanity

567. […] [T]he Appeals Chamber notes that it is well-established that “the presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character”.[1] The Appeals Chamber further recalls that “the civilian population need only be predominantly civilian”.[2] […]

569. […] [T]he Appeals Chamber reiterates that “there is no requirement nor is it an element of crimes against humanity that the victims of the underlying crimes be ‘civilians’”,[3] or even be predominantly civilians,[4] provided the acts form part of a widespread or systematic attack directed against a civilian population (the nexus requirement). The population targeted by the attack must be predominantly civilian,[5] but there is no legal requirement that a certain proportion of the victims of the underlying crime be civilians.[6] […]

The Appeals Chamber considered whether persons hors de combat were within the term “civilian” in Article 5 of the Statute. It then considered whether a person hors de combat could be otherwise a victim of a crime under Article 5.

The Prosecution submitted that the Trial Chamber defined “civilian” too narrowly by excluding persons hors de combat from the term “civilian” in Article 5 of the Statute. At paragraphs 292-296, the Appeal Chamber noted that the Appeal Judgments of Kordić and Čerkez, Blaškić and Galić applied the definition of civilians contained in Article 50 of Additional Protocol I to crimes against humanity.

It then quoted the following passages from Blaškić:

Read together, Article 50 of Additional Protocol I and Article 4A of the Third Geneva Convention establish that members of the armed forces, and members of militias or volunteer corps forming part of such armed forces, cannot claim civilian status. Neither can members of organized resistance groups, provided that they are commanded by a person responsible for his subordinates, that they have a fixed distinctive sign recognizable at a distance, that they carry arms openly, and that they conduct their operations in accordance with the laws and customs of war. (para. 110)

[…]

As a result, the specific situation of the victim at the time the crimes are committed may not be determinative of his civilian or non-civilian status. If he is indeed a member of an armed organization, the fact that he is not armed or in combat at the time of the commission of crimes, does not accord him civilian status. (para. 113)

The Appeals Chamber rejected the Prosecution’s assertion that Kordić and Čerkez departed from this principle. It went on to consider whether the definition of Article 50 of AP I should be applied.

297. […] the Appeals Chamber recalls that the Tribunal has consistently held, since its first cases, that provisions of the Statute must be interpreted according to the “natural and ordinary meaning in the context in which they occur”, taking into account their object and purpose.[1] In this regard, the Appeals Chamber observes that the definition of civilian found in Article 50(1) of Additional Protocol I accords with the ordinary meaning of the term “civilian” (in English) and “civil” (in French) as persons who are not members of the armed forces.[2] As such, the definition of civilians relied upon by the Prosecution is contrary to the ordinary meaning of the term “civilian.”

The Appeals Chamber concluded that:

302. In light of the above, the Appeals Chamber finds that the definition of civilian contained in Article 50 of Additional Protocol I reflects the definition of civilian for the purpose of applying Article 5 of the Statute and that the Trial Chamber did not err in finding that the term civilian in that context did not include persons hors de combat. This does not, however, answer the second contention raised by the Prosecution, i.e., whether the fact that persons hors de combat are not civilians for the purpose of Article 5 means that only civilians may be victims of crimes against humanity. The Appeals Chamber will turn to this second argument in the next section.

[1] Tadić Appeal Judgement, paras 282-283, 285 (quoting with approval the Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion of 3 March 1949, ICJ Reports 1950, p. 8), in relation to the wording of Article 5 of the Statute.

[2] Oxford English Dictionary (Oxford: Oxford University Press, 2007), “civilian”: “One who does not professionally belong to the Army or the Navy; a non-military person.” Dictionnaire de l’Académie Française 9th Edition (Paris : Éditions Fayard, 1991), “civil”: “Par opposition à Militaire. ” (emphasis in the original).

303. The second issue raised by the Prosecution is whether the condition under the chapeau of Article 5 of the Statute – that the attack be directed against a civilian population – also requires that all victims of each individual crime under Article 5 have civilian status, and in particular, whether the chapeau excludes persons hors de combat who are present within the civilian population from constituting victims of a crime against humanity. […]

305. When dealing with the expression “directed against any civilian population”, the Tribunal has interpreted it as requiring “that the acts be undertaken on a widespread or systematic basis”.[1] [… On] the face of it, the requirement that the acts of an accused must be part of a widespread or systematic attack directed against any civilian population does not necessarily imply that the criminal acts within this attack must be committed against civilians only. The chapeau rather requires a showing that an attack was primarily directed against a civilian population, rather than “against a limited and randomly selected number of individuals.”[2]

The Appeals Chamber referred to relevant interpretative sources, including the Reports of the Secretary-General recommending the establishment of the Tribunal and of the Commission of Experts Established Pursuant to Security Council Resolution 780. It then concluded:

313. Under Article 5 of the Statute, a person hors de combat may thus be the victim of an act amounting to a crime against humanity, provided that all other necessary conditions are met, in particular that the act in question is part of a widespread or systematic attack against any civilian population. Further, the Appeals Chamber is satisfied that the commission of crimes under Article 5 of the Statute against persons hors de combat attracted individual criminal responsibility under customary international law at the time of the commission of the offences. Therefore, the principle of nullum crimen sine lege is not violated.[3]

314. On the basis of the above, the Appeals Chamber finds that the Trial Chamber erred in finding that, under Article 5 of the Statute, persons hors de combat are excluded from the ambit of crimes against humanity when the crimes committed against them occur as part of a widespread or systematic attack against the civilian population. Provided this chapeau requirement is satisfied, a person hors de combat may be a victim of crimes against humanity.

12. The Appeals Chamber agrees that the issue on this appeal is one of statutory interpretation. As was stated by the Appeals Chamber in the Tadić Appeals Decision, the Statute of the Tribunal should be interpreted in light of its object and purpose.[1] Article 1 of the Tribunal’s Statute defines the territorial and temporal jurisdiction of the Tribunal conferring “the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991”. The object of the Security Council’s establishment of the Tribunal, as stated in Security Council Resolution 808 (1993), is to bring to an end the reported widespread violations of international humanitarian law, bring to justice the persons responsible for those violations, and contribute to the restoration and maintenance of peace in the territory of the former Yugoslavia. In drafting Article 5 of the Tribunal’s Statute and imposing the additional jurisdictional requirement that crimes against humanity be committed in armed conflict, the Security Council intended to limit the jurisdiction of the Tribunal to those crimes which had some connection to armed conflict in the former Yugoslavia. At the meeting of the Security Council at which the Tribunal’s Statute was adopted, those members that addressed the scope of Article 5 of the Statute made clear their view that it encompassed widespread or systematic criminal acts committed against the civilian population on the territory of the former Yugoslavia during an armed conflict. [2]

13. As expressed in the jurisprudence of the Tribunal, the jurisdictional requirement of Article 5 requires the existence of an armed conflict at the time and place relevant to the indictment, but it does not mandate any material nexus between the acts of the accused and the armed conflict.[3] While this interpretation itself offers little guidance on the meaning of “time and place relevant to the indictment”, the Tribunal’s jurisprudence on the application of Article 5 of the Statute points towards a broad interpretation. For example, there is no requirement that an attack directed against a civilian population be related to the armed conflict. As the Appeals Chamber in the Tadić Appeals Decision held: “The two — ‘the attack on the civilian population’ and the ‘armed conflict’ — must be separate notions, although of course under Article 5 of the Statute the attack on ‘any civilian population’ may be part of an ‘armed conflict”.[4] Likewise, the above mentioned Tadić Appeals Chambers interpretation of the application of international humanitarian law, of which Article 5 is a part, supports a broad interpretation of the jurisdictional requirement that a crime against humanity be committed in armed conflict.

14. The Appeals Chamber does not accept that the jurisdictional requirement of Article 5 requires the Prosecution to establish that an armed conflict existed within the State (or region) of the Former Yugoslavia in which the charged Article 5 crime is alleged to have been committed. There can be situations where an armed conflict is ongoing in one state and ethnic civilians of one of the warring sides, resident in another state, become victims of a widespread and systematic attack in response to that armed conflict. All that is required under Article 5 of the Statute is that the prosecution establish that an armed conflict is sufficiently related to the Article 5 crime with which the accused is charged. While, as previous jurisprudence of this Tribunal has held, there is no need for the Prosecution to establish a material nexus between the acts of the accused and the armed conflict, the Prosecution must establish a connection between the Article 5 crime itself and the armed conflict. Consistently with the object of the purpose of the Tribunal’s Statute, the jurisdictional requirement that Article 5 crimes be committed in armed conflict requires the Prosecution to establish that a widespread or systematic attack against the civilian population was carried out while an armed conflict in Croatia and/or Bosnia and Herzegovina was in progress. Whether the Prosecution can establish this connection in this case with respect to crimes against humanity in Vojvodina is a question of fact to be determined at trial.

15. For the foregoing reasons the Prosecution’s Appeal is allowed and the Trial Chamber’s Impugned Decision is reversed.

At para. 20, the Appeals Chamber confirmed its earlier finding in the impugned decision:

All that is required under Article 5 of the Statute is that the Prosecution establish that an armed conflict is sufficiently related to the Article 5 crime with which the accused is charged. While, as previous jurisprudence of this Tribunal has held, there is no need for the Prosecution to establish a material nexus between the acts of the accused and the armed conflict, the Prosecution must establish a connection between the Article 5 crime itself and the armed conflict. Consistently with the object of the purpose of the Tribunal’s Statute, the jurisdictional requirement that Article 5 crimes be committed in armed conflict requires the Prosecution to establish that a widespread or systematic attack against the civilian population was carried out while an armed conflict in Croatia and/or Bosnia and Herzegovina was in progress. Whether the Prosecution can establish this connection in this case with respect to crimes against humanity in Vojvodina is a question of fact to be determined at trial.[1]

It recalled its constant jurisprudence that “the existence of an armed conflict is not a constitutive element of the definition of crimes against humanity, but only a jurisdictional prerequisite.[2]” (para. 21).

41. The Appeals Chamber recalls that once the requirement of a widespread or systematic attack against a civilian population is fulfilled, there must be a nexus between the acts of the accused and the attack itself. The Appeals Chamber considers that, as correctly noted by the Prosecution,[1] the requirement that the acts of an accused must be part of the “attack” against the civilian population does not, however, require that they be committed in the midst of that attack: a crime which is committed before or after the main attack against the civilian population or away from it could still, if sufficiently connected, be part of that attack.[2] Hence, the fact that the crimes committed in Ovčara took place after the widespread and systematic attack against the civilian population of Vukovar cannot in itself be determinative of whether the nexus requirement was met. Such a nexus consists of two elements:

(i) the commission of an act which, by its nature or consequences, is objectively part of the attack; coupled with

(ii) knowledge on the part of the accused that there is an attack on the civilian population and that his act is part thereof.[3]

Thus, to convict an accused of crimes against humanity, it must be proven that his acts were related to a widespread or systematic attack against a civilian population and that he knew that his acts were so related. Such an assessment will be made on a case-by-case basis. For example, having considered the context and circumstances in which an act was committed, an act may be so far removed from the attack that no nexus can be established (so called “isolated act”) and hence cannot qualify as a crime against humanity.[4]

42. In the present case, after reviewing the evidence before it, the Trial Chamber concluded that the perpetrators of the crimes committed against the prisoners in Ovčara selected the individuals based on their involvement in the Croatian armed forces. The Trial Chamber found:

While there may have been a small number of civilians among the 194 identified murder victims charged in the Indictment, in the Chamber’s finding, the perpetrators of the offences against the prisoners at Ovčara on 20/21 November 1991 charged in the Indictment, acted in the understanding that their acts were directed against members of the Croatian forces.”[5]

The Appeals Chamber concurs with the Trial Chamber’s assessment of the evidence in the trial record. The crimes in Ovčara were directed against a specific group of individuals,[6] the victims of the crimes were selected based on their perceived involvement in the Croatian armed forces,[7] and as such treated “differently from the civilian population”.[8] The Prosecution’s arguments that the crimes occurred two days after the fall of Vukovar, that Ovčara was located within the geographical scope of the attack against Vukovar, that the perpetrators of the crimes in Ovčara also participated in the attack against the civilian population in Vukovar, and that the perpetrators of the crimes “harboured intense feeling of animosity towards persons they perceived as enemy forces,[9] do not undermine the Trial Chamber’s findings, unchallenged by the Parties, that the perpetrators of the crimes in Ovčara acted in the understanding that their acts were directed against members of the Croatian armed forces. The fact that they acted in such a way precludes that they intended that their acts form part of the attack against the civilian population of Vukovar and renders their acts so removed from the attack that no nexus can be established.

43. The Appeals Chamber finds that the requirement of a nexus between the acts of the accused and the attack itself was not established and that, in the absence of the required nexus under Article 5 of the Statute between the crimes committed against the prisoners at Ovčara and the widespread or systematic attack against the civilian population of Vukovar, the crimes committed cannot be qualified as crimes against humanity. Thus, even though the Trial Chamber erred in law by adding a requirement that the victims of the underlying crimes under Article 5 of the Statute be civilians, the Appeals Chamber concurs with the Trial Chamber – albeit for different reasons – that the “jurisdictional prerequisites of Article 5 of the Statute have not been established”.[10]

27. The Trial Chamber was aware that the International Tribunal had not yet addressed the issue of whether the individual victims of the underlying crimes under Article 5 of the Statute must be civilians.[1] To support its above conclusion, it sought to rely on the finding in the Blaškić Appeal Judgement that “both the status of the victim as a civilian and the scale on which it is committed or the level of organization involved characterize a crime against humanity”.[2] However, as explained below, this finding cannot lend support to the conclusion that the underlying crimes under Article 5 of the Statute can only be committed against civilians.

28. The Appeals Chamber in Blaškić first stated that the Trial Chamber “correctly recognised that a crime against humanity applies to acts directed against any civilian population”.[3] It then addressed Tihomir Blaškić’s argument that he never ordered attacks directed against a civilian population but that the casualties were the unfortunate consequence of an otherwise legitimate and proportionate military operation.[4] In this context, the Appeals Chamber found that the Trial Chamber erred when it stated that “the specificity of a crime against humanity results not from the status of the victim but the scale and organisation in which it must be committed”.[5] It further found that “both the status of the victim as a civilian and the scale on which it is committed or the level of organization involved characterize a crime against humanity”.[6] The Appeals Chamber’s finding was therefore concerned with the issue of whether legitimate military targets were attacked and was not seized of the question of whether the victims of the underlying crimes under Article 5 of the Statute must be civilians. Accordingly the Appeals Chamber’s finding is to be understood as only reflecting the jurisdictional requirement of Article 5 of the Statute that crimes against humanity must be committed as part of a widespread attack against a civilian population.[7] It cannot be understood as implying that the underlying crimes under Article 5 of the Statute can only be committed against civilians as the Trial Chamber did in the present case.

29. The Appeals Chamber recently confirmed that “[t]here is nothing in the text of Article 5 of the Statute, or previous authorities of the Appeals Chamber that requires that individual victims of crimes against humanity be civilians”.[8] Further, it held that under customary international law, persons hors de combat can also be victims of crimes against humanity, provided that all the other necessary conditions are met.[9]

30. This is not to say that under Article 5 of the Statute the status of the victims as civilians is irrelevant. In fact, the status of the victims is one of the factors that can be assessed in determining whether the jurisdictional requirement that the civilian population be the primary target of an attack has been fulfilled,[10] along with, inter alia, the means and method used in the course of the attack, the number of victims, the discriminatory nature of the attack, the nature of the crimes committed in its course, the resistance to the assailants at the time and the extent to which the attacking force may be said to have complied or attempted to comply with the precautionary requirements of the laws of war.[11]

31. Further, the fact that a population under the chapeau of Article 5 of the Statute must be “civilian” does not imply that such population shall only be comprised of civilians. The status of the victims will thus also be relevant to determining whether the population against which the attack is directed is civilian. In Kordić and Čerkez, the Appeals Chamber stated:

The civilian population comprises all persons who are civilians and the presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.[12]

In Blaškić, the Appeals Chamber, relying on the ICRC Commentary to Article 50 of Additional Protocol I,[13] held that “in order to determine whether the presence of soldiers within a civilian population deprives the population of its civilian character, the number of soldiers, as well as whether they are on leave, must be examined”.[14]

32. Accordingly, whereas the civilian status of the victims, the number of civilians, and the proportion of civilians within a civilian population are factors relevant to the determination of whether the chapeau requirement of Article 5 of the Statute that an attack be directed against a “civilian population” is fulfilled, there is no requirement nor is it an element of crimes against humanity that the victims of the underlying crimes be “civilians”.

33. In light of the foregoing,the Appeals Chamber finds that the Trial Chamber erred in law at paragraphs 462 and 463 of the Trial Judgement in concluding that, for the purposes of Article 5 of the Statute, the victims of the underlying crime must be civilians, and consequently erroneously creating an additional requirement under Article 5 of the Statute.

[1] Trial Judgement, para. 462: “The Chamber is aware of the fact that, to date, the Tribunal’s jurisprudence has not been called upon to address the question whether the individual victims of crimes against humanity need to be civilians”.

[8] Martić Appeal Judgement, para. 307. See also paras 303-306, 308. In Martić, the Appeals Chamber entered convictions for crimes committed against persons hors de combat, considering that they were victims of a widespread and systematic attack against the civilian population, and that all the elements of the offences were met (see Martić Appeal Judgement, paras 318-319, 346, 355).

[9] Martić Appeal Judgement, paras 311, 313.

[10] Kunarac et al. Appeal Judgement, para. 92: “The Appeals Chamber is satisfied that the Trial Chamber correctly defined and identified the “population” which was being attacked and that it correctly interpreted the phrase “directed against” as requiring that the civilian population which is subjected to the attack must be the primary rather than an incidental target of the attack”.

[13] ICRC Commentary to Article 50 of Additional Protocol I, para. 1922: “[I]n wartime conditions it is inevitable that individuals belonging to the category of combatants become intermingled with the civilian population, for example, soldiers on leave visiting their families. However, provided that these are not regular units with fairly large numbers, this does not in any way change the civilian character of a population”.

35. Following the Prosecution’s decision not to pursue the second sub-ground of its first ground of appeal,[1] the Trial Chamber’s finding to the effect that the term “civilian” in Article 5 of the Statute has to be interpreted in accordance with Article 50 of Additional Protocol I and therefore does not include combatants or persons hors de combat,[2] remains unchallenged. This finding was based, inter alia, on the Appeals Chamber’s well-established jurisprudence,[3] reiterated in the Martić Appeal Judgement,[4] that the notion of “civilian” under Article 5 of the Statute excludes persons hors de combat. In Blaškić, the Appeals Chamber found:

Article 50 of Additional Protocol I to the Geneva Conventions contains a definition of civilians and civilian populations, and the provisions in this article may largely be viewed as reflecting customary law.[5]

Read together, Article 50 of Additional Protocol I and Article 4A of the Third Geneva Convention establish that members of the armed forces, and members of militias or volunteer corps forming part of such armed forces, cannot claim civilian status.[6]

In Kordić and Čerkez, the Appeals Chamber found that “Article 50 of Additional Protocol I contains a definition of civilians and civilian populations, and the provisions in this article may largely be viewed as reflecting customary law”.[7] In Galić, the Appeals Chamber reiterated that “[e]ven hors de combat, however, [combatants] would still be members of the armed forces of a party to the conflict and therefore fall under the category of persons referred to in Article 4(A)(1) of the Third Geneva Convention; as such, they are not civilians in the context of Article 50, paragraph 1, of Additional Protocol I”.[8] The notion of “civilian” under Article 5 of the Statute is defined through the above provisions of the law of armed conflict.[9] Whereas under Article 3 of the Statute the situation of a victim at the time of the offence may be relevant to its status,[10] the notion of “civilian” under Article 5 of the Statute, as correctly noted by the Trial Chamber,[11] is not determined by the position of the victims at the time of the commission of the underlying crime.[12]

36. Pursuant to this jurisprudence and in light of the facts of the case, the Trial Chamber found that the victims were predominantly non-civilians.[13] However, the Appeals Chamber has found that the Trial Chamber erred in law in concluding that, for the purposes of Article 5 of the Statute, the victims of the underlying crime must be civilians, and consequently erroneously creating an additional requirement under Article 5 of the Statute. Accordingly, the Appeals Chamber must determine whether this error has the effect of invalidating the Trial Judgement. To that end and in light of the finding in the Martić Appeal Judgement that “[u]nder Article 5 of the Statute, a person hors de combat may thus be the victim of an act amounting to a crime against humanity, provided that all other necessary conditions are met, in particular that the act in question is part of a widespread or systematic attack against any civilian population”,[14] the Appeals Chamber will assess whether in the instant case all other necessary conditions to enter a conviction for crimes against humanity had been met.

[9] See Kunarac et al. Appeal Judgement, para. 91: “To the extent that the alleged crimes against humanity were committed in the course of an armed conflict, the laws of war provide a benchmark against which the Chamber may assess the nature of the attack and the legality of the acts committed in its midst”. See also Kordić and Čerkez Appeal Judgement, para. 96.

[10] Strugar Appeal Judgement, para. 178: “[I]n order to establish the existence of a violation of Common Article 3 under Article 3 of the Statute, a Trial Chamber must be satisfied beyond a reasonable doubt that the victim of the alleged offence was not participating in acts of war which by their nature or purpose are intended to cause actual harm to the personnel or equipment of the enemy’s armed forces. Such an enquiry must be undertaken on a case-by-case basis, having regard to the individual circumstances of the victim at the time of the alleged offence”. (footnote omitted).

[11] Trial Judgement, para. 455.

[12] See Blaškić Appeal Judgement, para. 114, in which the Appeals Chamber overturned the Trial Chamber’s finding that the specific situation of the victim at the time the crimes were committed must be taken into account in determining his standing as a civilian. Relying on the ICRC Commentary to Article 43 of Additional Protocol I that “[a] civilian who is incorporated in an armed organization […] becomes a member of the military and a combatant throughout the duration of the hostilities” (ICRC Commentary, p. 515, para. 1676), the Appeals Chamber concluded: “[T]he specific situation of the victim at the time the crimes are committed may not be determinative of his civilian or non-civilian status. If he is indeed a member of an armed organization, the fact that he is not armed or in combat at the time of the commission of crimes, does not accord him civilian status”. See also Kordić and Čerkez Appeal Judgementpara. 421: “The Appeals Chamber recalls that during an armed conflict, until a soldier is demobilized, he is considered a combatant whether or not he is in combat, or for the time being armed”; MartićAppeal Judgement, paras 292-295.

[13] Trial Judgement, para. 481. The Trial Chamber found that the evidence indicated that of the 194 persons identified as among those alleged in the Indictment to have been murdered at Ovčara in the evening and night hours of 20/21 November 1991, 181 were known to be active in the Croatian forces in Vukovar. The Trial Chamber concluded that the effect of the evidence was that the majority of these men (and two women) were members or reserve members of ZNG (87) and that there was also a considerable number of members of the HV (30) and the Croatian MUP (17); there were some members of the Croatian protection force of Vukovar (9) and a few members of the Croatian paramilitary formation HOS (Croatian’s Liberation Forces, Hrvatske Oslobodilacke Snage); regarding the cases of nine other victims the Trial Chamber accepted evidence of their military involvement; there were also 13 persons in respect of whom no known military involvement was established by the evidence (Trial Judgement, para. 479).

916. According to the Kunarac et al. Trial Judgement, an attack “can be described as a course of conduct involving the commission of acts of violence”.[1] This characterization was endorsed by the Appeals Chamber of ICTY,[2] which added the following:

The concepts of “attack” and “armed conflict” are not identical. Under customary international law, the attack could precede, outlast, or continue during the armed conflict, but it need not be a part of it. Also, the attack in the context of a crime against humanity is not limited to the use of armed force; it encompasses any mistreatment of the civilian population.[3]

917. This position is reiterated in the Kordić and Čerkez Appeal Judgement[4] and was adopted in a number of ICTY Trial judgements.[5] According to the Kayishema and Ruzindana Trial Judgement:

The attack is the event of which the enumerated crimes must form part. Indeed, within a single attack, there may exist a combination of the enumerated crimes, for example murder, rape and deportation.[6]

918. In agreement with these authorities, the Appeals Chamber concludes that, for purposes of Article 3 of the Statute, an attack against a civilian population means the perpetration against a civilian population of a series of acts of violence, or of the kind of mistreatment referred to in sub-paragraphs (a) to (i) of the Article.[7] […]

920. […] It is well established that the attack must be widespread orsystematic.[8] In particular, the Appeals Chamber has held that the conjunction “et” in the French version of Article 3 of the Statute is a translation error.[9] The Appeals Chamber further recalls that:

“widespread” refers to the large-scale nature of the attack and the number of victims, whereas “systematic” refers to “the organised nature of the acts of violence and the improbability of their random occurrence.” Patterns of crimes – that is the non-accidental repetition of similar criminal conduct on a regular basis – are a common expression of such systematic occurrence.[10]

In this particular case, the Appeals Chamber concluded that the Prosecution had not proven beyond reasonable doubt that there was a widespread or systematic attack against Tutsi civilians in Rwanda between 1 January and 6 April 1994 (paras 929-933). However, it held that “[w]hereas the crime per se must be committed as part of a widespread and systematic attack, preparatory acts, instigation or aiding and abetting can be accomplished before the commission of the crime and the occurrence of the widespread and systematic attack[11]” (para. 934).

[7] Likewise, the Elements of Crimes under the Statute of the International Criminal Court (ICC-ASP/1/3, Article 7 Crimes Against Humanity, Introduction, para. 3) provide:

“Attack directed against a civilian population” is understood in this context to mean a course of conduct involving the multiple commission of acts referred to in article 7, paragraph 1, of the Statute against any civilian population. […] The acts need not constitute a military attack.

[11] By its nature, planning occurs before the commission of the crime. The same applies to instigation under Article 6(1) of the Statute, while aiding and abetting can take place before, during or after the commission of the crime: see supra XI. A.

924. The Appeals Chamber considers that, except for extermination,[1] a crime need not be carried out against a multiplicity of victims in order to constitute a crime against humanity. Thus an act directed against a limited number of victims, or even against a single victim, can constitute a crime against humanity, provided it forms part of a widespread or systematic attack against a civilian population.[2]

1026. The Appeals Chamber observes in this respect that in the Kordić and Čerkez AppealJudgement the ICTY Appeals Chamber found that cumulative convictions are permissible for persecution and other inhumane acts, since each offence has a materially distinct element not contained in the other.[1] Relying on this jurisprudence, the ICTY Appeals Chamber found in the Stakić Appeal Judgement that it was permissible to enter cumulative convictions for extermination and persecution as crimes against humanity on the basis of the same facts. It found that extermination requires proof that the accused caused the death of a large number of people, while persecution requires proof that an act or omission was in fact discriminatory and that the act or omission was committed with specific intent to discriminate.[2] The Appeals Chamber endorses the analysis of the ICTY Appeals Chamber.

1027. According to the foregoing, the Appeals Chamber finds that it is permissible to convict Appellant Barayagwiza cumulatively of both persecution and extermination on the basis of the same facts, Judge Güney dissenting from this finding.

62. Article 3 of the Statute requires that the crimes be committed “as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds.”[1] Hategekimana fails to appreciate that the Trial Chamber did not situate Rugomboka’s murder in the context of a widespread and systematic attack that was limited to Ngoma Commune or Butare Prefecture. Rather, the Trial Chamber found that this killing formed part of “a systematic attack against the civilian population on political grounds” occurring “throughout Rwanda, including various parts of Butare [Prefecture].”[2] In view of this finding, it is immaterial that the Trial Chamber did not point to evidence that there was a widespread and systematic attack specifically in Ngoma Commune or Butare Prefecture as of 7 April 1994.[3] Hategekimana has not challenged on appeal the reasonableness of the Trial Chamber’s finding that this murder related to a systematic attack on political grounds which took place throughout Rwanda.

[3] See Bagosora and Nsengiyumva Appeal Judgement, para. 390 (“Nsengiyumva’s argument that the Trial Chamber erred in ‘taking the country of Rwanda as one crime scene’ implies that, in order to qualify as crimes against humanity, the attacks in Gisenyi should have been shown to have been widespread or systematic independently of attacks taking place elsewhere in Rwanda. Such a suggestion is, however, erroneous, as the requirement is that the attacks be committed within a broader context, that is, as part of a widespread or systematic attack.”).

In paragraphs 281–305 the Appeals Chamber considered the submission of the Prosecution that the Trial Chamber erred in finding that all crimes against humanity enumerated under Article 5 require a discriminatory intent. It considered the text of Article 5 (paras. 282–286), relevant customary international law (paras. 287–292), the Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993)[1] (paras. 293–297) and statements made by France, the United States and the Russian Federation in the Security Council (paras. 298–304). It concluded as follows:

305. The Prosecution was correct in submitting that the Trial Chamber erred in finding that all crimes against humanity require a discriminatory intent. Such an intent is an indispensable legal ingredient of the offence only with regard to those crimes for which this is expressly required, that is, for Article 5 (h), concerning various types of persecution.

248. The Appeals Chamber agrees with the Prosecution that there is nothing in Article 5 to suggest that it contains a requirement that crimes against humanity cannot be committed for purely personal motives. The Appeals Chamber agrees that it may be inferred from the words “directed against any civilian population” in Article 5 of the Statute that the acts of the accused must comprise part of a pattern of widespread or systematic crimes directed against a civilian population[1] and that the accused must have known that his acts fit into such a pattern. There is nothing in the Statute, however, which mandates the imposition of a further condition that the acts in question must not be committed for purely personal reasons, except to the extent that this condition is a consequence or a re-statement of the other two conditions mentioned.

249. The Appeals Chamber would also agree with the Prosecution that the words “committed in armed conflict” in Article 5 of the Statute require nothing more than the existence of an armed conflict at the relevant time and place. The Prosecution is, moreover, correct in asserting that the armed conflict requirement is a jurisdictional element, not “a substantive element of the mens rea of crimes against humanity”[2] (i.e., not a legal ingredient of the subjective element of the crime).

250. This distinction is important because, as stated above, if the exclusion of “purely personal” behaviour is understood simply as a re-statement of the two-fold requirement that the acts of the accused form part of a context of mass crimes and that the accused be aware of this fact, then there is nothing objectionable about it; indeed it is a correct statement of the law. It is only if this phrase is understood as requiring that the motives of the accused (“personal reasons”, in the terminology of the Trial Chamber) notbe unrelated to the armed conflict that it is erroneous. Similarly, that phrase is unsound if it is taken to require proof of the accused’s motives, as distinct from the intent to commit the crime and the knowledge of the context into which the crime fits.

251. […] A nexus with the accused’s acts is required, however, only for the attack on “any civilian population”. A nexus between the accused’s acts and the armed conflict is not required, as is instead suggested by the Judgement. The armed conflict requirement is satisfied by proof that there was an armed conflict; that is all that the Statute requires, and in so doing, it requires more than does customary international law.

See also paragraphs 256–270.

The Appeals Chamber concluded:

271. The Trial Chamber correctly recognised that crimes which are unrelated to widespread or systematic attacks on a civilian population should not be prosecuted as crimes against humanity. Crimes against humanity are crimes of a special nature to which a greater degree of moral turpitude attaches than to an ordinary crime. Thus to convict an accused of crimes against humanity, it must be proved that the crimes were related to the attack on a civilian population (occurring during an armed conflict) and that the accused knew that his crimes were so related.

272. For the above reasons, however, the Appeals Chamber does not consider it necessary to further require, as a substantive element of mens rea, a nexus between the specific acts allegedly committed by the accused and the armed conflict, or to require proof of the accused’s motives. Consequently, in the opinion of the Appeals Chamber, the requirement that an act must not have been carried out for the purely personal motives of the perpetrator does not form part of the prerequisites necessary for conduct to fall within the definition of a crime against humanity under Article 5 of the Tribunal’s Statute.

[1] This requirement had already been recognised by this Tribunal in the Vukovar HospitalRule 61 Decision:

“Crimes against humanity are to be distinguished from war crimes against individuals. In particular, they must be widespread or demonstrate a systematic character. However, as long as there is a link with the widespread or systematic attack against a civilian population, a single act could qualify as a crime against humanity. As such, an individual committing a crime against a single victim or a limited number of victims might be recognised as guilty of a crime against humanity if his acts were part of the specific context identified above.”(“Review of Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence”, The Prosecutor v. Mile Mrksić et al., Case No.: IT-95-13-R61, Trial Chamber I, 3 April 1996, para. 30).

248. The Appeals Chamber agrees with the Prosecution that there is nothing in Article 5 to suggest that it contains a requirement that crimes against humanity cannot be committed for purely personal motives. The Appeals Chamber agrees that it may be inferred from the words “directed against any civilian population” in Article 5 of the Statute that the acts of the accused must comprise part of a pattern of widespread or systematic crimes directed against a civilian population[1] and that the accused must have known that his acts fit into such a pattern. There is nothing in the Statute, however, which mandates the imposition of a further condition that the acts in question must not be committed for purely personal reasons, except to the extent that this condition is a consequence or a re-statement of the other two conditions mentioned.

249. The Appeals Chamber would also agree with the Prosecution that the words “committed in armed conflict” in Article 5 of the Statute require nothing more than the existence of an armed conflict at the relevant time and place. The Prosecution is, moreover, correct in asserting that the armed conflict requirement is a jurisdictional element, not “a substantive element of the mens rea of crimes against humanity”[2] (i.e., not a legal ingredient of the subjective element of the crime).

250. This distinction is important because, as stated above, if the exclusion of “purely personal” behaviour is understood simply as a re-statement of the two-fold requirement that the acts of the accused form part of a context of mass crimes and that the accused be aware of this fact, then there is nothing objectionable about it; indeed it is a correct statement of the law. It is only if this phrase is understood as requiring that the motives of the accused (“personal reasons”, in the terminology of the Trial Chamber) notbe unrelated to the armed conflict that it is erroneous. Similarly, that phrase is unsound if it is taken to require proof of the accused’s motives, as distinct from the intent to commit the crime and the knowledge of the context into which the crime fits.

251. […] A nexus with the accused’s acts is required, however, only for the attack on “any civilian population”. A nexus between the accused’s acts and the armed conflict is not required, as is instead suggested by the Judgement. The armed conflict requirement is satisfied by proof that there was an armed conflict; that is all that the Statute requires, and in so doing, it requires more than does customary international law.

See also paragraphs 256–270.

The Appeals Chamber concluded:

271. The Trial Chamber correctly recognised that crimes which are unrelated to widespread or systematic attacks on a civilian population should not be prosecuted as crimes against humanity. Crimes against humanity are crimes of a special nature to which a greater degree of moral turpitude attaches than to an ordinary crime. Thus to convict an accused of crimes against humanity, it must be proved that the crimes were related to the attack on a civilian population (occurring during an armed conflict) and that the accused knew that his crimes were so related.

272. For the above reasons, however, the Appeals Chamber does not consider it necessary to further require, as a substantive element of mens rea, a nexus between the specific acts allegedly committed by the accused and the armed conflict, or to require proof of the accused’s motives. Consequently, in the opinion of the Appeals Chamber, the requirement that an act must not have been carried out for the purely personal motives of the perpetrator does not form part of the prerequisites necessary for conduct to fall within the definition of a crime against humanity under Article 5 of the Tribunal’s Statute.

[1] This requirement had already been recognised by this Tribunal in the Vukovar HospitalRule 61 Decision:

“Crimes against humanity are to be distinguished from war crimes against individuals. In particular, they must be widespread or demonstrate a systematic character. However, as long as there is a link with the widespread or systematic attack against a civilian population, a single act could qualify as a crime against humanity. As such, an individual committing a crime against a single victim or a limited number of victims might be recognised as guilty of a crime against humanity if his acts were part of the specific context identified above.”(“Review of Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence”, The Prosecutor v. Mile Mrksić et al., Case No.: IT-95-13-R61, Trial Chamber I, 3 April 1996, para. 30).

82. The validity of cumulative convictions in relation to the same conduct, charged as a violation of the laws or customs of war under Article 3 and as a crime against humanity under Article 5 of the Statute, is based on the notion that each crime has a special ingredient not possessed by the other. Following the reasoning of the Appeals Chamber in the Delalić appeal judgement,[1]the Appeals Chamber notes that, Article 3 requires a close link between the acts of the accused and the armed conflict; this element is not required by Article 5. On the other hand, Article 5 requires proof that the act occurred as part of a widespread or systematic attack against a civilian population; that element is not required by Article 3. Thus each Article has an element requiring proof of a fact not required by the other. As a result, cumulative convictions under both Articles 3 and 5 are permissible. In such a situation, it is not possible to hold, as is submitted by the cross-appellant, that either offence is a “lesser included offence” of the other.

141. It is by now a settled rule of customary international law that crimes against humanity do not require a connection to international armed conflict. Indeed, as the Prosecutor points out, customary international law may not require a connection between crimes against humanity and any conflict at all. Thus, by requiring that crimes against humanity be committed in either internal or international armed conflict, the Security Council may have defined the crime in Article 5 [of the ICTY Statute] more narrowly than necessary under customary international law. There is no question, however, that the definition of crimes against humanity adopted by the Security Council in Article 5 comports with the principle of nullum crimen sine lege.

142. We conclude, therefore, that Article 5 may be invoked as a basis of jurisdiction over crimes committed in either internal or international armed conflicts. […]

270. The Appeals Chamber recalls that the Kunarac et al. Appeal Judgement endorsed the holding of the trial chamber in that case that the accused must have known of the attack against the civilian population and that his acts comprised part of the attack, or at least must have taken the risk that his acts were part thereof.[1] Subsequently, in Blaškić the Appeals Chamber held that what is required is “knowledge on the part of the accused that there is an attack on the civilian population, as well as knowledge that his act is part thereof”.[2]

271. The dispute between the parties in the present case revolves around the question of whether the Blaškić Appeal Judgement rescinded the ruling in Kunarac et al. with regard to the mens reachapeau requirementof Article 5 of the Statute. When analysed in the context of the other relevant considerations in the Blaškić Appeal Judgement, it becomes evident that the Appeals Chamber did not intend to depart from its previous holding in Kunaracet al. This is illustrated by the fact that in defining the mens rea of crimes against humanity, the Blaškić Appeal Judgementexplicitly referred to paragraph 102 of the Kunarac et al. Appeal Judgement, which in turn cites with approval the mens rea standard adopted by the trial chamber in that case.[3] Such interpretation is further supported by the Appeals Chamber’s subsequent jurisprudence adhering to the “taking the risk” standard endorsed in the Kunarac et al. Appeal Judgement.[4] […]

69. The Appeals Chamber has taken account of the arguments of the parties and the authorities to which they refer, inclusive of previous judgments of the Trial Chambers and the Appeals Chamber of the International Tribunal. After full consideration, the Appeals Chamber takes the view that there is in law no distinction between the seriousness of a crime against humanity and that of a war crime. The Appeals Chamber finds no basis for such a distinction in the Statute or the Rules of the International Tribunal construed in accordance with customary international law; the authorized penalties are also the same, the level in any particular case being fixed by reference to the circumstances of the case. […]

See also at pp. 35-56 the Separate Opinions of Judge Shahabuddeen and Judge Cassese

269. […] [T]he Prosecution did not have to prove the existence of an armed conflict: contrary to Article 5 of the ICTY Statute, Article 3 of the ICTR Statute does not require that the crimes be committed in the context of an armed conflict.[1] This is an important distinction.

269. […] Contrary to the submissions of the Appellant, the Prosecution did not have to prove the existence of a high-level policy against the Tutsi: although the existence of a policy or plan may be useful to establish that the attack was directed against a civilian population and that it was widespread and systematic, it is not an independent legal element.[1]

318. A conviction for genocide or complicity in genocide is not impermissibly cumulative with the convictions for crimes against humanity. A conviction for genocide under Article 2 of the Statute requires proof of an “intent to destroy, in whole or in part, a national, ethnical, racial, or religious group.”[1] That is a wholly different legal and factual showing from the finding of a “widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds” that must support a conviction for crimes against humanity.[2] Upon this basis, the Appeals Chamber has held that convictions for genocide and convictions for crimes against humanity, based on the same facts, are permissible.[3]

369. […] Simultaneous convictions are permissible for war crimes, crimes against humanity and complicity to commit genocide as each has a materially distinct element. The Appellant’s conviction for complicity to commit genocide was based on his aiding and abetting principal perpetrators who killed Tutsi because of their ethnicity.[1] As noted earlier, the mens rea for complicity in genocide, for those forms of complicity amounting to aiding and abetting, is knowledge of the specific intent of the perpetrator(s).[2] The Appellant’s convictions for crimes against humanity necessitated proof of a widespread or systematic attack against a civilian population, whereas convictions for war crimes require that the offences charged be closely related to the armed conflict. In the Trial Chamber’s opinion, this nexus was clearly established.[3]

141. With respect to Tolimir’s argument that the Trial Chamber erred in law in applying an incorrect standard to establish the mens rea of extermination by not requiring that the civilian population was the intended target of mass murder,[1] the Appeals Chamber recalls that, as noted by the Trial Chamber,[2] it is well-established that with regard to the victims of the underlying acts of crimes against humanity, “[t]here is nothing in the text of Article 5 of the Statute, or previous authorities of the Appeals Chamber that requires that individual victims of crimes against humanity be civilians”.[3] The Appeals Chamber has more specifically clarified that:

whereas the civilian status of the victims, the number of civilians, and the proportion of civilians within a civilian population are factors relevant to the determination of whether the chapeau requirement of Article 5 of the Statute that an attack be directed against a “civilian population” is fulfilled, there is no requirement nor is it an element of crimes against humanity that the victims of the underlying crimes be “civilians”.[4]

142. Accordingly, while the establishment of the actus reus of a crime against humanity requires that the crime occur as part of a widespread or systematic attack directed against a civilian population,[5] the victims of the underlying crime do not have to be civilians. The Appeals Chamber thus rejects Tolimir’s argument that the Trial Chamber erred in law by applying an incorrect mens rea standard for extermination when not requiring proof of intent to commit mass murder against civilians. It was sufficient for the Trial Chamber to be satisfied in that regard that the mens rea for the crime of extermination was established on the basis of evidence of the intent to kill on a massive scale as part of a widespread or systematic attack directed against a civilian population.

542. […] Conviction for murder as a crime against humanity and conviction for extermination as a crime against humanity, based on the same set of facts, however, cannot be cumulative.[1] Murder as a crime against humanity does not contain a materially distinct element from extermination as a crime against humanity; each involves killing within the context of a widespread or systematic attack against the civilian population, and the only element that distinguishes these offences is the requirement of the offence of extermination that the killings occur on a mass scale.

464. In the opinion of the Appeals Chamber, except in the case of persecution, a discriminatory intent is not required by international humanitarian law as a legal ingredient for all crimes against humanity[1]. To that extent, the Appeals Chamber endorses the general conclusion and review contained in Tadic, as discussed above.[2] However, though such is not a requirement for the crime per se, all crimes against humanity, may, in actuality, be committed in the context of a discriminatory attack against a civilian population. As held in Tadic: “[i]t is true that in most cases, crimes against humanity are waged against civilian populations which have been specifically targeted for national, political, ethnic, racial or religious reasons”.[3] It is within this context, and in light of the nature of the events in Rwanda (where a civilian population was actually the target of a discriminatory attack), that the Security Council decided to limit the jurisdiction of the Tribunal over crimes against humanity solely to cases where they were committed on discriminatory grounds. This is to say that the Security Council intended thereby that the Tribunal should not prosecute perpetrators of other possible crimes against humanity.

465. The Appeals Chamber found that in doing so, the Security Council did not depart from international humanitarian law[4] nor did it change the legal ingredients required under international humanitarian law with respect to crimes against humanity. It limited at the very most the jurisdiction of the Tribunal to a sub-group of such crimes, which in actuality may be committed in a particular situation. By the same token, the Appeals Chamber notes that ICTY Statute contains in its Article 5 explicitly an express requirement for a nexus with an armed conflict. As held in Tadic, this “creates a narrower sphere of operation than that provided for crimes against humanity under customary international law”.[5] Here again, by limiting the scope of the article, the Security Council did not, however, intend that the definition contained in ICTY Statute should constitute a departure from customary international law. In the case at bench, the Tribunal was conferred jurisdiction over crimes against humanity (as they are known in customary international law), but solely “when committed as part of a widespread or systematic attack against any civilian population” on certain discriminatory grounds; the crime in question is the one that falls within such a scope. Indeed, this narrows the scope of the jurisdiction, which introduces no additional element in the legal ingredients of the crime as these are known in customary international law.

466. Consequently, apart from this restriction of jurisdiction, such crimes continue to be governed in the usual manner by customary international law, namely that discrimination is not a requirement for the various crimes against humanity, except where persecution is concerned.

467. The meaning to be collected from Article 3 of the Statute is that even if the accused did not have a discriminatory intent when he committed the act charged against a particular victim, he nevertheless knew that his act could further a discriminatory attack against a civilian population; the attack could even be perpetrated by other persons and the accused could even object to it. As a result, where it is shown that the accused had knowledge of such objective nexus, the Prosecutor is under no obligation to go forward with a showing that the crime charged was committed against a particular victim with a discriminatory intent. In this connection, the only known exception in customary international law relates to cases of persecutions.

468. In light of this interpretation and the finding that persecution is the only crime which requires a discriminatory intent, the Appeals Chamber is of the view that any interpretation of the chapeau of Article 3 of the Statute such as would add a requirement for a showing of a discriminatory intent with respect to all crimes against humanity would likely render redundant the express if more succinct reference to discrimination – contained in Article 3 of the Statute (Persecutions), which reference is understood as a requirement of a discriminatory intent.[6] As is known, one of the basic rules of interpretation requires that a provision or part thereof should not be interpreted in a manner to render it redundant or bereft of any object, unless such a conclusion is inevitable. One must proceed from the assumption that the lawmakers intended to give some effect to each of the words used.

469. For the foregoing reasons, the Appeals Chamber considers the present ground of appeal and finds that:

(1) Article 3 of the Statute does no require that all crimes against humanity enumerated therein be committed with a discriminatory intent.

(2) Article 3 restricts the jurisdiction of the Tribunal to crimes against humanity committed in a specific situation, that is, “as part of a widespread or systematic attack against any civilian population” on discriminatory grounds.

[2] [Tadić Appeal Judgement], para. 287 et seq. Following its review in para. 292, the Appeals Chamber found that “[t]his warrants the conclusion that customary international law, as it results from the gradual development of international instruments and national case-law into general rules, does not presuppose a discriminatory or persecutory intent for all crimes against humanity”. In Tadic, ICTY Appeals Chamber relied, in particular, on the interpretation of the London Agreement of 8 August 1945, the Statute of the International Tribunal for Tokyo, Council Control Law No. 10, the Draft Code of crimes against the peace and security of mankind and the Statute of Rome.

[3] [Tadić Appeal Judgement], para. 297.

[4] In this connection, the Appeals Chamber recalls the finding in Tadic (para. 296): “it is open to the Security Council – subject to respect for peremptory norms of international law (jus cogens) – to adopt definitions of crimes in the Statute which deviate from customary international law [footnotes omitted]. Nevertheless, as a general principle, provisions of the Statute defining the crimes within the jurisdiction of the Tribunal should always be interpreted as reflecting customary international law, unless an intention to depart from customary international law is expressed in the terms of the Statute, or from other authoritative sources”.

[5] Tadic Judgment, footnote 356.

[6] The chapeau refers to discrimination on “national, political, ethnic, racial or religious” grounds while Article 3(h) of the Statute envisages cases of “persecutions on political, racial and religious grounds”.

185. The Appeals Chamber recalls that the crime of extermination is the act of killing on a large scale.[1] The expression “on a large scale” does not, however, suggest a numerical minimum.[2] As a crime against humanity, the act of killing must occur within the context of a widespread or systematic attack against the civilian population on national, political, ethnic, racial, or religious grounds.[3]

394. Extermination as a crime against humanity under Article 3(b) of the Statute is the act of killing on a large scale,[1] committed within the context of a widespread or systematic attack against any civilian population on national, political, ethnic, racial, or religious grounds.[2]

396. The […] Appeals Chamber considers that the Trial Chamber was unreasonable to conclude that the “large scale” requirement for extermination was satisfied based on a collective consideration of events committed in different prefectures, in different circumstances, by different perpetrators, and over a period of two months. Each of the incidents which formed the basis of Nsengiyumva’s convictions presented distinct features and could not be said to constitute one and the same incident.[1] As such, they could not be considered to constitute one and the same crime sharing the same actus reus.

397. The Appeals Chamber notes that the Trial Chamber nonetheless suggested that some of the killings of which the co-Accused were convicted “in themselves” satisfied the requirement of killing on a large scale.[1] However, the Trial Chamber failed to make any factual findings as to whether the killings perpetrated in Gisenyi town on 7 April 1994 met the requisite threshold of having been committed “on a large scale” in themselves.[2] With respect to the killings in Gisenyi town, the Trial Chamber’s findings are limited to stating that “targeted attacks against Tutsis and suspected accomplices” were perpetrated.[3] The Appeals Chamber is concerned that the Trial Chamber did not make any specific findings on this fundamental element of the crime of extermination.

398. Nevertheless, the Appeals Chamber considers that the facts as found by the Trial Chamber and the evidence it relied upon support a finding beyond reasonable doubt that the killings in Gisenyi town were perpetrated on a large scale. The Appeals Chamber notes with respect to the Gisenyi town killings that the Trial Chamber accepted and relied upon Prosecution Witness DO’s evidence that the victims included: a Tutsi teacher and his daughter; Hutus suspected of being accomplices, such as Daniel Rwabijongo, as well as Assoumani Kajanja and his Tutsi wife; Gilbert and another Tutsi man hiding in a compound with him; and a Tutsi woman named Mukabutare and her daughter.[4] Witness DO testified that there were several other groups of assailants apart from the one he was assigned to that were perpetrating parallel killings throughout Gisenyi town at the same time.[5] In the Appeals Chamber’s view, these killings are qualifiable as having occurred on a large scale.

[2] In this respect, the Appeals Chamber recalls that the expression “on a large scale” does not suggest a numerical minimum. See Rukundo Appeal Judgement, para. 185; Ntakirutimana Appeal Judgement, para. 516.

389. An enumerated crime under Article 3 of the Statute constitutes a crime against humanity if it is proven to have been committed as part of a widespread or systematic attack against a civilian population on national, political, ethnic, racial or religious grounds.[1] The term “widespread” refers to the large scale nature of the attack and the number of victims, whereas the term “systematic” refers to “the organised nature of the acts of violence and the improbability of their random occurrence”.[2] With respect to the mens rea, the perpetrator must have acted with knowledge of the broader context of the attack, and with knowledge that his acts (or omissions) formed part of the widespread or systematic attack against the civilian population.[3]

390. The Trial Chamber correctly articulated these required elements of crimes against humanity[4] and, contrary to Nsengiyumva’s contention, provided a reasoned opinion for its conclusion that the totality of the evidence established that these required elements were met.[5] Nsengiyumva’s argument that the Trial Chamber erred in “taking the country of Rwanda as one crime scene” implies that, in order to qualify as crimes against humanity, the attacks in Gisenyi should have been shown to have been widespread or systematic independently of attacks taking place elsewhere in Rwanda. Such a suggestion is, however, erroneous, as the requirement is that the attacks be committed within a broader context, that is, as part of a widespread or systematic attack.[6] Nsengiyumva fails to show that the Trial Chamber erred in holding that this requirement was satisfied.

[5] Trial Judgement, para. 2167 (“The Chamber has considered the totality of the evidence, in particular concerning the ethnic composition of the individuals who sought refuge at various sites as well as the actual or perceived political leanings of many of those killed or singled out at roadblocks in the days after President Habyarimana’s death. It finds that there were widespread and systematic attacks against the civilian population on ethnic and political groups between April and July 1994.”).

[6] Cf. Gacumbitsi Appeal Judgement, para. 103 (“the question is simply whether the totality of the evidence proves a nexus between the act and the widespread or systematic attack.”).

729. […] The Appeals Chamber underscores that the desecration of Prime Minister Uwilingiyimana’s corpse constituted a profound assault on human dignity meriting unreserved condemnation under international law.[1] Such crimes strike at the core of national and human identity. However, the Appeals Chamber finds, Judge Pocar dissenting, that Bagosora was not charged on this basis, and thus cannot be held legally responsible for this act.

414. The Appeals Chamber notes that the permissibility of cumulative convictions for the crimes of murder as a crime against humanity and persecution as a crime against humanity has been specifically considered by the Appeals Chamber.[1] The Appeals Chamber has found that the crime of persecution requires a materially distinct element to be proven that is not present as an element in the crime of murder, namely proof that an act or omission discriminates in fact and that the act or omission was committed with specific intent to discriminate.[2] The crime of murder was also held to require proof of a materially distinct element that is not required to be proven in establishing the crime of persecution, namely proof of the death of one or more persons.[3]Therefore, cumulative convictions for murder and persecution as crimes against humanity were found to be permissible.[4] The Appeals Chamber accordingly finds that the Trial Chamber did not err in convicting Nsengiyumva for both murder and persecution as crimes against humanity for the killings in Gisenyi town.[5]

416. The Appeals Chamber recalls, however, that cumulative convictions for extermination and murder as crimes against humanity based on the same set of facts are not permissible because, whereas extermination requires the materially distinct element that the killings occur on a mass scale, murder does not contain an element materially distinct from extermination.[1] The Trial Chamber therefore erred in law in entering cumulative convictions for murder and extermination as crimes against humanity for the killings in Gisenyi town. Since the offence of extermination contains an additional materially distinct element,[2] which is present in the instant case,[3] the Appeals Chamber concludes that Nsengiyumva’s convictions for extermination entered under Count 6 of the Nsengiyumva Indictment should be upheld while his convictions for murder as a crime against humanity under Count 5 should be vacated.

735. The Appeals Chamber confirms that cumulative convictions for extermination and persecution as crimes against humanity based on the same set of facts are permissible since each offence has a materially distinct element not contained in the other.[6] Extermination requires proof that the accused caused the death of a large number of people, while persecution necessitates evidence that an act or omission was in fact discriminatory and that the act or omission was perpetrated with the specific intent to discriminate.[7].

736. Bagosora did not formally raise any error vis-à-vis his cumulative convictions for murder and extermination as crimes against humanity. However, the Appeals Chamber recalls its holding above in connection with Nsengiyumva’s appeal that cumulative convictions for extermination and murder as crimes against humanity based on the same set of facts are not permissible because murder as a crime against humanity does not contain a materially distinct element from extermination as a crime against humanity.[1] Accordingly, the Appeals Chamber finds, proprio motu, that the Trial Chamber erred in law in convicting Bagosora of both murder and extermination as crimes against humanity based on the same facts. In this context, the Appeals Chamber recalls that the more specific provision should be upheld.[2] Consequently, the Appeals Chamber concludes that Bagosora’s conviction for murder as a crime against humanity under Count 4 of the Bagosora Indictment pursuant to Article 6(3) of the Statute should be reversed, while his conviction for extermination under Count 6 of the Bagosora Indictment should be affirmed.

[2] See Krajišnik Appeal Judgement, para. 386, citingČelebići Appeal Judgement, para. 413: “Where this test is not met, the Chamber must decide in relation to which offence it will enter a conviction. This should be done on the basis of the principle that the conviction under the more specific provision should be upheld. Thus, if a set of facts is regulated by two provisions, one of which contains an additional materially distinct element, then a conviction should be entered only under that provision”. See also Strugar Appeal Judgement, para. 321.

101. […] The totality of evidence relating to the forcible transfer and the detention and mistreatment in Bratunac town, in particular when coupled with the humanitarian crisis that followed the fall of the Srebrenica enclave, leaves no room for any other reasonable conclusion about the nature of the attack.

Knowledge:

102. Blagojević also submits that the Trial Chamber erred in fact in finding that he was aware of this broader context.[1] His simple denial that he lacked knowledge of the context in which the attack occurred is insufficient to call into question the reasonableness of the Trial Chamber’s findings on this point. As discussed elsewhere in this Judgement, the Trial Chamber reasonably concluded that he was aware, among other things, of the dire humanitarian situation, the forcible transfer, and the detention and mistreatment of thousands of Bosnian Muslim men in Bratunac town, as well as the role played by brigade personnel in these events.[2] Moreover, it was also reasonable for the Trial Chamber to conclude that given his role as a commanding officer of a brigade operating in the area at the time, Blagojević would have had knowledge of the wider context in which his own acts occurred, namely the widespread or systematic attack against the civilian population of Srebrenica. Though the Trial Chamber concluded that he lacked knowledge of the mass murder operation,[3] the events of which he had knowledge, mentioned above, were sufficient to put him on notice of the nature of the attack.

126. In relation to the mens rea applicable to crimes against humanity, the Appeals Chamber reiterates its case law pursuant to which knowledge on the part of the accused that there is an attack on the civilian population, as well as knowledge that his act is part thereof, is required.[1] The Trial Chamber, in stating that it “suffices that he knowingly took the risk of participating in the implementation of the ideology, policy or plan,” did not correctly articulate the mens rea applicable to crimes against humanity. Moreover, as stated above, there is no legal requirement of a plan or policy, and the Trial Chamber’s statement is misleading in this regard. Furthermore, the Appeals Chamber considers that evidence of knowledge on the part of the accused depends on the facts of a particular case; as a result, the manner in which this legal element may be proved may vary from case to case. Therefore, the Appeals Chamber declines to set out a list of evidentiary elements which, if proved, would establish the requisite knowledge on the part of the accused.

101. In relation to the widespread or systematic nature of the attack, the Appeals Chamber recalls the jurisprudence of the International Tribunal according to which the phrase “widespread” refers to the large-scale nature of the attack and the number of targeted persons, while the phrase “systematic” refers to the organized nature of the acts of violence and the improbability of their random occurrence.[1] Patterns of crimes, in the sense of the non-accidental repetition of similar criminal conduct on a regular basis, are a common expression of such systematic occurrence.[2] Only the attack, not the individual acts of the accused, must be widespread or systematic.[3] The Appeals Chamber underscores that the acts of the accused need only be a part of this attack, and all other conditions being met, a single or limited number of acts on his or her part would qualify as a crime against humanity, unless those acts may be said to be isolated or random.[4]

109. Before determining the scope of the term “civilian population,” the Appeals Chamber deems it necessary to rectify the Trial Chamber’s statement, contained in paragraph 180 of the Trial Judgement, according to which “[t]argeting civilians or civilian property is an offence when not justified by military necessity.” The Appeals Chamber underscores that there is an absolute prohibition on the targeting of civilians in customary international law.

110. In determining the scope of the term “civilian population,” the Appeals Chamber recalls its obligation to ascertain the state of customary law in force at the time the crimes were committed.[1] In this regard, it notes that the Report of the Secretary General states that the Geneva Conventions “constitute rules of international humanitarian law and provide the core of the customary law applicable in international armed conflicts.”[2] Article 50 of Additional Protocol I to the Geneva Conventions contains a definition of civilians and civilian populations, and the provisions in this article may largely be viewed as reflecting customary law. As a result, they are relevant to the consideration at issue under Article 5 of the Statute, concerning crimes against humanity.

111. Article 50, paragraph 1, of Additional Protocol I states that a civilian is “any person who does not belong to one of the categories of persons referred to in Article 4A(1), (2), (3) and (6) of the Third Convention and in Article 43 of this Protocol. In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.” The Appeals Chamber notes that the imperative “in case of doubt” is limited to the expected conduct of a member of the military. However, when the latter’s criminal responsibility is at issue, the burden of proof as to whether a person is a civilian rests on the Prosecution.

113. Read together, Article 50 of Additional Protocol I and Article 4A of the Third Geneva Convention establish that members of the armed forces, and members of militias or volunteer corps forming part of such armed forces, cannot claim civilian status. Neither can members of organized resistance groups, provided that they are commanded by a person responsible for his subordinates, that they have a fixed distinctive sign recognizable at a distance, that they carry arms openly, and that they conduct their operations in accordance with the laws and customs of war. However, the Appeals Chamber considers that the presence within a population of members of resistance groups, or former combatants, who have laid down their arms, does not alter its civilian characteristic.[3] The Trial Chamber was correct in this regard.

114. However, the Trial Chamber’s view that the specific situation of the victim at the time the crimes were committed must be taken into account in determining his standing as a civilian may be misleading. The ICRC Commentary is instructive on this point and states:

All members of the armed forces are combatants, and only members of the armed forces are combatants. This should therefore dispense with the concept of quasi-combatants, which has sometimes been used on the basis of activities related more or less directly with the war effort. Similarly, any concept of a part-time status, a semi-civilian, semi-military status, soldier by night and peaceful citizen by day, also disappears. A civilian who is incorporated in an armed organization such as that mentioned in paragraph 1, becomes a member of the military and a combatant throughout the duration of the hostilities (or in any case, until he is permanently demobilized by the responsible command referred to in paragraph 1), whether or not he is in combat, or for the time being armed. If he is wounded, sick or shipwrecked, he is entitled to the protection of the First and Second Conventions (Article 44, paragraph 8), and, if he is captured, he is entitled to the protection of the Third Convention (Article 44, paragraph 1).[4]

As a result, the specific situation of the victim at the time the crimes are committed may not be determinative of his civilian or non-civilian status. If he is indeed a member of an armed organization, the fact that he is not armed or in combat at the time of the commission of crimes, does not accord him civilian status.

115. The Trial Chamber also stated that the “presence of soldiers within an intentionally targeted civilian population does not alter the civilian nature of that population.” The ICRC Commentary on this point states:

…in wartime conditions it is inevitable that individuals belonging to the category of combatants become intermingled with the civilian population, for example, soldiers on leave visiting their families. However, provided that these are not regular units with fairly large numbers, this does not in any way change the civilian character of a population.[5]

Thus, in order to determine whether the presence of soldiers within a civilian population deprives the population of its civilian character, the number of soldiers, as well as whether they are on leave, must be examined.

[1] Hadžihasanović Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, 16 July 2003 (“Hadžihasanović 16 July 2003 Decision”), para. 44. See also on a more general note, Report of the Secretary General, (S/25704, 3 May 1993), paras. 29, 34.

[2] Report of the Secretary General, (S/25704, 3 May 1993), [Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808/1993] para. 37.

[3] Common Article 3 of the Geneva Conventions provides that “Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.” That these persons are protected in armed conflicts reflects a principle of customary international law.

120. […] The Appeals Chamber agrees that a plan or policy is not a legal element of a crime against humanity, though it may be evidentially relevant in proving that an attack was directed against a civilian population and that it was widespread or systematic.

260. The Appeals Chamber recalls that cumulative convictions entered under different statutory provisions but based on the same conduct are permissible only if each statutory provision involved has a materially distinct element not contained in the other.[1] An element is materially distinct if it requires proof of a fact that is not required by the other.[2] Applying this well-established principle, the Appeals Chamber recently reiterated that cumulative convictions for extermination and murder as crimes against humanity are not permissible, reasoning that, “whereas extermination requires the materially distinct element that the killings occur on a mass scale, murder does not contain an element materially distinct from extermination”.[3]

261. The Trial Chamber therefore erred in law in entering cumulative convictions for both murder and extermination as crimes against humanity for the killings perpetrated at Nyanza hill and IAMSEA.[4] Since the offence of extermination contains an additional materially distinct element and the conviction under the more specific provision should be retained,[5] the Appeals Chamber concludes that Ntabakuze’s convictions for extermination entered under Count 5 of the Indictment should be upheld, while his convictions for murder as a crime against humanity under Count 4 of the Indictment should be vacated.

108. The Appeals Chamber finds that the destruction of property, depending on the nature and extent of the destruction, may constitute a crime of persecutions of equal gravity to other crimes listed in Article 5 of the Statute.[1]

111. […] The Appeals Chamber holds that the mens rea for persecutions “is the specific intent to cause injury to a human being because he belongs to a particular community or group.” The Appeals Chamber stresses that there is no requirement in law that the actor possess a “persecutory intent” over and above a discriminatory intent.[1]

112. In addition, the Appeals Chamber considers that a person who orders, plans or instigates an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, plan or instigation, has the requisite mens rea for establishing liability under Article 7(1) of the Statute pursuant to ordering, planning or instigating. Ordering, planning or instigating with such awareness has to be regarded as accepting that crime. Thus, an individual who orders, plans or instigates an act with the awareness of a substantial likelihood that persecutions as a crime against humanity will be committed in the execution of the order, plan or instigation, may be liable under Article 7(1) of the Statute for the crime of persecutions.[2]

115. […] the existence of an international armed conflict, an element of Articles 42 and 43 of Geneva Convention IV, is not required for imprisonment as a crime against humanity.

116. The Appeals Chamber agrees with the Trial Chamber’s finding “that the term imprisonment in Article 5(e) of the Statute should be understood as arbitrary imprisonment, that is to say, the deprivation of liberty of the individual[1] without due process of law, as part of a widespread or systematic attack directed against a civilian population”.[2]

1039. It has previously been held in Krnojelac, Vasiljević, and Krstić, that intra-Article 5 convictions under the Statute for persecutions as a crime against humanity with other crimes against humanity found in that Article, are impermissibly cumulative. In Vasiljević and Krstić, the Appeals Chamber stated that the appellant could not be convicted both for murder and persecutions under Article 5(a) and (h) of the Statute, on the basis of the same acts.[1] It was reasoned that where a charge of persecutions is premised on murder and is proven, the Prosecution need not prove an additional fact in order to secure the conviction for murder because the offence is subsumed by the offence of persecutions, which requires proof of a materially distinct element of discriminatory intent in the commission of the act.[2] Similarly, the Appeals Chamber in these cases, as well as in Krnojelac,held that convictions for persecutions under Article 5(h) and for other inhumane acts under Article 5(i) on the basis of the same conduct are impermissibly cumulative “since the crime of persecution in the form of inhumane acts subsumes the crime against humanity of inhumane acts.”[3]

1040. The Appeals Chamber considers that cogent reasons warrant a departure from this jurisprudence[4] as an incorrect application of the Čelebići test to intra-Article 5 convictions. These cases are in direct contradiction to the reasoning and proper application of the test by the Appeals Chambers in Jelisić, Kupreškić, Kunarać, and Musema. As stated above, the Appeals Chamber in Čelebići expressly rejected an approach that takes into account the actual conduct of the accused as determinative of whether multiple convictions for that conduct are permissible. Rather, what is required is an examination, as a matter of law, of the elements of each offence in the Statute that pertain to that conduct for which the accused has been convicted. It must be considered whether each offence charged has a materially distinct element not contained in the other; that is, whether each offence has an element that requires proof of a fact not required by the other offence.

1041. The first pair of intra-Article 5 cumulative convictions at issue in this case is persecutions as a crime against humanity under Article 5(h) of the Statute and murder as a crime against humanity under Article 5(a) of the Statute. The Appeals Chamber finds that the definition of persecutions contains materially distinct elements not present in the definition of murder under Article 5 of the Statute: the requirement of proof that an act or omission discriminates in fact and proof that the act or omission was committed with specific intent to discriminate. Murder, by contrast, requires proof that the accused caused the death of one or more persons, regardless of whether the act or omission causing the death discriminates in fact or was specifically intended as discriminatory, which is not required by persecutions. Thus, cumulative convictions on the basis of the same acts under Article 5 of the Statute are permissible in relation to these crimes.

1042. The second pair of intra-Article 5 cumulative convictions at issue in this case is persecutions and other inhumane acts as a crime against humanity under Article 5(i) of the Statute. The Appeals Chamber finds that the definition of persecutions contains materially distinct elements not present in the definition of other inhumane acts under Article 5 of the Statute: the requirement of proof that an act or omission discriminates in fact and proof that the act or omission was committed with specific intent to discriminate. Other inhumane acts, by contrast, require proof that the accused caused serious bodily or mental harm to the victim(s), regardless of whether the act or omission causing the harm discriminates in fact or was specifically intended as discriminatory, which is not required by persecutions. Thus, cumulative convictions on the basis of the same acts are permissible in relation to these crimes under Article 5 of the Statute.

1043. Finally, the third pair of intra-Article 5 cumulative convictions at issue in this case is persecutions and imprisonment as a crime against humanity under Article 5(e) of the Statute. The Appeals Chamber finds that the definition of persecutions contains materially distinct elements not present in the definition of imprisonment under Article 5 of the Statute: the requirement of proof that an act or omission discriminates in fact and proof that the act or omission was committed with specific intent to discriminate. On the other hand, the offence of imprisonment requires proof of the deprivation of the liberty of an individual without due process of law, regardless of whether the deprivation of liberty discriminates in fact or was specifically intended as discriminatory, which is not required by persecutions. Thus, cumulative convictions on the basis of the same acts are permissible in relation to these crimes under Article 5 of the Statute.

See also Joint Dissenting Opinion on Cumulative Convictions of Judges Schomburg and Güney.

53. The Appeals Chamber recalls that it is well established that the principle of distinction requires parties to distinguish at all times “between the civilian population and combatants, between civilian and military objectives, and accordingly direct attacks only against military objectives”.[1] There is an absolute prohibition against the targeting of civilians in customary international law,[2] encompassing indiscriminate attacks.[3] […]

54. There is no requirement that particular areas or zones be designated as civilian or military in nature. Rather, a distinction is to be made between the civilian population and combatants, or between civilian and military objectives. Such distinctions must be made on a case-by-case basis. Further, considering the obligations incumbent upon combatants to distinguish and target exclusively military objectives, the Appeals Chamber finds Milošević’s argument regarding the proportion of civilians present in areas “replete with military objectives”[4] unpersuasive. In fact, Milošević does not even attempt to argue that the civilian victims in Sarajevo were proportional casualties of lawful military attacks launched by the SRK. A general assertion that the attacks were legitimate because they allegedly targeted “military zones” throughout the city is bound to fail.

55. The Appeals Chamber recognizes that some of the language used in paragraphs 896-904 of the Trial Judgement may appear confusing and lead to the conclusion that the Trial Chamber actually accepted Milošević’s approach of defining the status of the “areas”. However, the Appeals Chamber understands the Trial Judgement to have adopted this terminology for the sole purpose of addressing Milošević’s arguments, whereas in reality, the Trial Chamber meant to establish the civilian status of the population targeted in specific incidents.[5]

139. The Appeals Chamber has already found that despite the somewhat confusing language used by the Trial Chamber, it correctly engaged in a case-by-case analysis of the targets and modalities of the attacks, rather than that of “zones”.[6] Therefore, the Appeals Chamber will pursue its analysis on the basis of its understanding that when referring to certain neighbourhoods of Sarajevo, the Trial Chamber meant to establish the civilian status of the population targeted in the attacks that took place there during the Indictment period (and not that of the areas or zones as such).

[3] By way of example, the Appeals Chamber recalls Article 51(5)(a) of Additional Protocol I [Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 8 June 1977, 1125 U.N.T.S. 3] which, although mainly concerned with cases of carpet bombing and similar military activities (ICRC Commentary to Additional Protocols [ Claude Pillot, Yves Sandoz, Christophe Swinarski and Bruno Zimmermann, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, (Geneva/Dordrecht: ICRC/Martinus Nijhoff Publishers, 1987) International Committee of the Red Cross of Geneva, 1987], paras 1979-1981) and not with a protracted campaign of sniping and shelling during a siege-like situation, is undoubtedly instructive of the approach belligerents are required to take in establishing and pursuing military targets.

[4] See supra, Section III.C.1.(a), para. 44.

[5] See also infra, Section VII.B, paras 139 et seq. The Appeals Chamber further notes that Section III.A.3.(a) of the Trial Judgement containing the Trial Chamber’s evaluation of the evidence is entitled “Civilian Status of the Population”.

58. Concerning the status of victims of crimes under Article 5 of the Statute, the Appeals Chamber recalls that “there is nothing in the text of Article 5 of the Statute, or previous authorities of the Appeals Chamber, that requires that individual victims of crimes against humanity be civilians”.[1] Nonetheless, it notes that the civilian status of the victims remains relevant for the purpose of the chapeau requirement of Article 5 of the Statute as one of the factors to be assessed in determining whether the civilian population was the primary target of an attack.[2] Furthermore, “the fact that a population, under the chapeau of Article 5 of the Statute, must be 'civilian' does not imply that such population shall only be comprised of civilians.”[3] Accordingly, the civilian status of the victims and the proportion of civilians within a population are factors relevant to satisfy the chapeau requirement that an attack was directed against a “civilian population”, yet it is not an element of the crimes against humanity that individual victims of the underlying crimes be “civilians”.[4]

388. Addressing the more specific issue of intra-Article 5 cumulative convictions, the Kordić and Čerkez Appeal Judgement ruled that a correct application of the Čelebići test required “an examination, as a matter of law, of the elements of each offence in the Statute that pertain to that conduct for which the accused has been convicted.” Based on this reasoning, the Appeals Chamber admitted that convictions for the crimes against humanity of persecution on the one hand, and murder, other inhumane acts and imprisonment on the other hand, could be cumulated, since all of these offences contained “an element that requires proof of a fact not required by the other[s]”.[1]

389. In the instant case, Amicus Curiae alleges that the Kordić and Čerkez Appeal Judgement is an incorrect application of the Čelebići test and should therefore not be used as a precedent. The Appeals Chamber cannot agree with this interpretation. While prior jurisprudence adopted another point of view,[2] in the Kordić and Čerkez Appeal Judgement the Appeals Chamber clearly explained the reasons that warranted the departure from previous cases.[3] Subsequent appeal judgements in the Stakić, Naletilić and Martinović and Nahimana et al. cases confirmed the approach adopted in Kordić and Čerkez.[4] The Appeals Chamber therefore sees no cogent reason to depart from the current jurisprudence with respect to intra-Article 5 cumulative convictions.

390. In the Trial Judgement, the Trial Chamber determined that:

[p]ersecution as a crime against humanity has a materially distinct element from murder as a crime against humanity in that persecution requires proof that an act or omission discriminates in fact, and proof that the act or omission was committed with specific intent to discriminate. Conversely, murder as a crime against humanity requires proof that the accused caused the victim’s death, which is not an element required for proof of persecution. As a result, a cumulative conviction for persecution and murder under Article 5 of the Statute is permissible. The same reasoning applies to extermination, deportation, and forced transfer as an inhumane act.[5]

391. The Appeals Chamber, by majority, Judge Güney dissenting,[6] considers that this is a correct application of the law on cumulative convictions. Therefore, the Trial Chamber did not err in cumulating the conviction for persecution as a crime against humanity with the convictions for the crimes against humanity of murder, extermination, deportation and inhumane acts (forcible transfer). This ground of appeal is dismissed.

The Appeals Chamber proceeded to analyse first whether crimes against humanity attract harsher penalties than war crimes and second whether crimes resulting in loss of life are to be punished more severely than other crimes.

241. […] the Appellant relies on, inter alia, certain decisions of this Tribunal.[1] In particular, he draws attention to the judgement of the Appeals Chamber in the Erdemović case in which the majority of the Appeals Chamber found that crimes against humanity should attract a harsher penalty than war crimes.[2]

242. This Chamber notes that, when the Appellant’s Amended Brief was filed on 14 September 1999, the Judgement of the Appeals Chamber in the Tadić Sentencing Appeals Judgement was yet to be delivered.[3] In this latter case, the Chamber considered the case law now relied upon by the Appellant, but reached a conclusion, by majority, contrary to that which the Appellant now advocates:

[T]here is in law no distinction between the seriousness of a crime against humanity and that of a war crime. The Appeals Chamber finds no basis for such a distinction in the Statute or the Rules of the International Tribunal construed in accordance with customary international law; the authorized penalties are also the same, the level in any particular case being fixed by reference to the circumstances of the case.[4]

243. This Chamber notes that the same arguments now advanced by the Appellant were considered and rejected by the Appeals Chamber in the Tadić Sentencing Appeals Judgement. The question arises whether this Chamber should follow the ratio decidendi on this issue set out in that Judgement. In the recent Aleksovski Appeals Judgement the Appeals Chamber held that:

[w]here, in a case before it, the Appeals Chamber is faced with previous decisions that are conflicting, it is obliged to determine which decision it will follow, or whether to depart from both decisions for cogent reasons in the interests of justice.[5]

The Appeals Chamber will follow its decision in the Tadić Sentencing Appeals Judgement on the question of relative gravity as between crimes against humanity and war crimes.

The Appeals Chamber also concluded:

246. […] The Appeals Chamber considers [the view that crimes resulting in loss of life are to be punished more severely than those not leading to the loss of life] to be too rigid and mechanistic.

247. Since the Tadić Sentencing Appeals Judgement, the position of the Appeals Chamber has been that there is no distinction in law between crimes against humanity and war crimes that would require, in respect of the same acts, that the former be sentenced more harshly than the latter. It follows that the length of sentences imposed for crimes against humanity does not necessarily limit the length of sentences imposed for war crimes.

[3] Although the Tadić Sentencing Appeal Judgement was pronounced prior to the oral hearings in this case, counsel for the Appellant did not change this line of argument.

[4] Tadić Sentencing Appeals Judgement, para. 69 (emphasis added). Further argument in support of this view was set out in the Separate Opinion of Judge Shahabuddeen in that same judgement. SeealsoProsecutor v. Duško Tadić, Case No. IT-94-1-Tbis-R117, Sentencing Judgement, 11 Nov. 1999, Separate Opinion of Judge Robinson, in which Judge Robinson expressed the view that there is no basis for “the conclusion that, as a matter of principle, crimes against humanity are more serious violations of international humanitarian law than war crimes” (ibid., p.10) and Prosecutor v. Dražen Erdemović, Case No. IT-96-22-A, Judgement, 7 Oct. 1997, Separate and Dissenting Opinion of Judge Li, in which Judge Li stated “that the gravity of a criminal act, and consequently the seriousness of its punishment, are determined by the intrinsic nature of the act itself and not by its classification under one category or another”. Ibid., para. 19.

83. As pointed out by the Trial Chamber, this requirement is not equivalent to Article 3 of the Statute’s exigency that the acts be closely related to the armed conflict.[1] As stated by the Trial Chamber, the requirement contained in Article 5 of the Statute is a purely jurisdictional prerequisite which is satisfied by proof that there was an armed conflict and that objectively the acts of the accused are linked geographically as well as temporally with the armed conflict.[2]

87. […] [W]hen establishing whether there was an attack upon a particular civilian population, it is not relevant that the other side also committed atrocities against its opponent’s civilian population.[1] The existence of an attack from one side against the other side’s civilian population would neither justify the attack by that other side against the civilian population of its opponent nor displace the conclusion that the other side’s forces were in fact targeting a civilian population as such.[2] Each attack against the other’s civilian population would be equally illegitimate and crimes committed as part of this attack could, all other conditions being met, amount to crimes against humanity.

90. […] [T]he use of the word “population” does not mean that the entire population of the geographical entity in which the attack is taking place must have been subjected to that attack.[1] It is sufficient to show that enough individuals were targeted in the course of the attack, or that they were targeted in such a way as to satisfy the Chamber that the attack was in fact directed against a civilian “population”, rather than against a limited and randomly selected number of individuals.

91. […] [T]he expression “directed against” is an expression which “specifies that in the context of a crime against humanity the civilian population is the primary object of the attack”.[2] In order to determine whether the attack may be said to have been so directed, the Trial Chamber will consider, inter alia, the means and method used in the course of the attack, the status of the victims, their number, the discriminatory nature of the attack, the nature of the crimes committed in its course, the resistance to the assailants at the time and the extent to which the attacking force may be said to have complied or attempted to comply with the precautionary requirements of the laws of war. To the extent that the alleged crimes against humanity were committed in the course of an armed conflict, the laws of war provide a benchmark against which the Chamber may assess the nature of the attack and the legality of the acts committed in its midst.

93. The requirement that the attack be “widespread” or “systematic” comes in the alternative.[1] Once it is convinced that either requirement is met, the Trial Chamber is not obliged to consider whether the alternative qualifier is also satisfied. Nor is it the role or responsibility of the Appeals Chamber to make supplementary findings in that respect.

94. […] The Trial Chamber correctly noted that “patterns of crimes – that is the non-accidental repetition of similar criminal conduct on a regular basis – are a common expression of such systematic occurrence”.[2]

95. […] [T]he assessment of what constitutes a “widespread” or “systematic” attack is essentially a relative exercise in that it depends upon the civilian population which, allegedly, was being attacked.[3] A Trial Chamber must therefore “first identify the population which is the object of the attack and, in light of the means, methods, resources and result of the attack upon the population, ascertain whether the attack was indeed widespread or systematic”.[4] The consequences of the attack upon the targeted population, the number of victims, the nature of the acts, the possible participation of officials or authorities or any identifiable patterns of crimes, could be taken into account to determine whether the attack satisfies either or both requirements of a “widespread” or “systematic” attack vis-à-vis this civilian population.

96. […] “[O]nly the attack, not the individual acts of the accused, must be widespread or systematic”.[5] In addition, the acts of the accused need only be a part of this attack and, all other conditions being met, a single or relatively limited number of acts on his or her part would qualify as a crime against humanity, unless those acts may be said to be isolated or random.

98. […] [N]either the attack nor the acts of the accused needs to be supported by any form of “policy” or “plan”. There was nothing in the Statute or in customary international law at the time of the alleged acts which required proof of the existence of a plan or policy to commit these crimes.[1] As indicated above, proof that the attack was directed against a civilian population and that it was widespread or systematic, are legal elements of the crime. But to prove these elements, it is not necessary to show that they were the result of the existence of a policy or plan. It may be useful in establishing that the attack was directed against a civilian population and that it was widespread or systematic (especially the latter) to show that there was in fact a policy or plan, but it may be possible to prove these things by reference to other matters. Thus, the existence of a policy or plan may be evidentially relevant, but it is not a legal element of the crime.

[1] There has been some debate in the jurisprudence of this Tribunal as to whether a policy or plan constitutes an element of the definition of crimes against humanity. The practice reviewed by the Appeals Chamber overwhelmingly supports the contention that no such requirement exists under customary international law. See, for instance, Article 6(c) of the Nuremberg Charter; Nuremberg Judgement, Trial of the Major War Criminals before the International Military Tribunal, Nüremberg, 14 November 1945 – 1 October 1945, in particular, pp 84, 254, 304 (Streicher) and 318-319 (von Schirach); Article II(1)(c) of Control Council Law No 10; In re Ahlbrecht, ILR 16/1949, 396; Ivan Timofeyevich Polyukhovich v The Commonwealth of Australia and Anor, (1991) 172 CLR 501; Case FC 91/026; Attorney-General v Adolph Eichmann, District Court of Jerusalem, Criminal Case No. 40/61; Mugesera et al. v Minister of Citizenship and Immigration, IMM-5946-98, 10 May 2001, Federal Court of Canada, Trial Division; In re Trajkovic, District Court of Gjilan (Kosovo, Federal Republic of Yugoslavia), P Nr 68/2000, 6 March 2001; Moreno v Canada (Minister of Employment and Immigration), Federal Court of Canada, Court of Appeal, [1994] 1 F.C. 298, 14 September 1993; Sivakumar v Canada (Minister of Employment and Immigration), Federal Court of Canada, Court of Appeal, [1994] 1 F.C. 433, 4 November 1993. See also Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), S/25704, 3 May 1993, paras 47-48; Yearbook of the International Law Commission (ILC), 1954, vol. II, 150; Report of the ILC on the work of its 43rd session, 29 April – 19 July 1991, Supplement No 10 (UN Doc No A/46/10), 265-266; its 46th session, 2 May – 22 July 1994, Supplement No 10 (UN Doc No A/49/10), 75-76; its 47th session, 2 May – 21 July 1995, 47, 49 and 50; its 48th session, 6 May – 26 July 1996, Supplement No 10 (UN Doc No A/51/10), 93 and 95-96. The Appeals Chamber reached the same conclusion in relation to the crime of genocide (Jelisić Appeal Judgement, para 48). Some of the decisions which suggest that a plan or policy is required in law went, in that respect, clearly beyond the text of the statute to be applied (see e.g., Public Prosecutor v Menten, Supreme Court of the Netherlands, 13 January 1981, reprinted in 75 ILR 331, 362-363). Other references to a plan or policy which have sometimes been used to support this additional requirement in fact merely highlight the factual circumstances of the case at hand, rather than impose an independent constitutive element (see, e.g., Supreme Court of the British Zone, OGH br. Z., vol. I, 19). Finally, another decision, which has often been quoted in support of the plan or policy requirement, has been shown not to constitute an authoritative statement of customary international law (see In re Altstötter, ILR 14/1947, 278 and 284 and comment thereupon in Ivan Timofeyevich Polyukhovich v The Commonwealth of Australia and Anor, (1991) 172 CLR 501, pp 586-587).

100. The acts of the accused must be part of the “attack” against the civilian population, but they need not be committed in the midst of that attack. A crime which is committed before or after the main attack against the civilian population or away from it could still, if sufficiently connected, be part of that attack. The crime must not, however, be an isolated act.[1] A crime would be regarded as an “isolated act” when it is so far removed from that attack that, having considered the context and circumstances in which it was committed, it cannot reasonably be said to have been part of the attack.[2]

[2] Ibid.; Tadić Trial Judgement, para 649 and Mrkšić Rule 61 Decision [ Prosecutor v MileMrkšić et al., Case No. IT-95-13-R61, Review of Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, 3 April 1996], para 30. On 30 May 1946, the Legal Committee of the United Nations War Crime Commission held that: “Isolated offences did not fall within the notion of crimes against humanity. As a rule systematic mass action, particularly if it was authoritative, was necessary to transform a common crime, punishable only under municipal law, into a crime against humanity, which thus became also the concern of international law. Only crimes which either by their magnitude and savagery or by their large number or by the fact that a similar pattern was applied at different times and places, endangered the international community or shocked the conscience of mankind, warranted intervention by States other than that on whose territory the crimes had been committed, or whose subjects had become their victims” (see, History of the United Nations War Crimes Commission and the Development of the Laws of War, Compiled by the United Nations War Crimes Commission, 1948, p 179).

102. […] [T]he accusedmust have had the intent to commit the underlying offence or offences with which he is charged, and that he must have known “that there is an attack on the civilian population and that his acts comprise part of that attack, or at least [that he took] the risk that his acts were part of the attack.”[1] This requirement […] does not entail knowledge of the details of the attack.[2]

103. For criminal liability pursuant to Article 5 of the Statute, “the motives of the accused for taking part in the attack are irrelevant and a crime against humanity may be committed for purely personal reasons.”[3] Furthermore, the accused need not share the purpose or goal behind the attack.[4] It is also irrelevant whether the accused intended his acts to be directed against the targeted population or merely against his victim. It is the attack, not the acts of the accused, which must be directed against the target population and the accused need only know that his acts are part thereof. At most, evidence that he committed the acts for purely personal reasons could be indicative of a rebuttable assumption that he was not aware that his acts were part of that attack.

189. The Appeals Chamber recalls that extermination as a crime against humanity under Article 3(b) of the Statute is the act of killing on a large scale.[1] The Appeals Chamber stresses that in the jurisprudence of both ad hoc Tribunals, the necessary actus reus underlying the crime of extermination consists of any act, omission, or combination thereof which contributes directly or indirectly to the killing of a large number of individuals.[2] Therefore, as the Appeals Chamber has previously considered in the Ndindabahizi Appeal Judgement, for the actus reus of extermination to be fulfilled, it is sufficient that the accused participated in measures indirectly causing death.[3] The Appeals Chamber will therefore now turn to assess whether Athanase Seromba’s acts as established by the Trial Chamber amount to acts underlying the commission of extermination.

190. Notwithstanding the confinement of the Gacumbitsi dictum regarding committing to genocide, the Appeals Chamber, Judge Liu dissenting, can find no reason why its reasoning should not be equally applicable to the crime of extermination. The key question raised by the Gacumbitsi dictum is what other acts can constitute direct participation in the actus reus of the crime. As noted above, the Appeals Chamber is satisfied that the acts of Athanase Seromba set out in the Judgement were sufficient to constitute direct participation in the actus reus of the crime of genocide, and is equally satisfied that the same acts are sufficient to constitute direct participation in the crime of extermination, in line with the Ndindabahizi Appeal Judgement, as discussed above. With respect to Athanase Seromba’s mens rea, the Appeals Chamber is satisfied that the role he played in the events that led to the destruction of the church, his knowledge that such destruction would inevitably result in the death of a large number of Tutsi civilians,[4] as well as his awareness of the widespread and systematic attack against the Tutsi population[5] occurring at the time, all demonstrate that he possessed the required intent to commit extermination. The Appeals Chamber, therefore, finds, Judge Liu dissenting, that the Trial Chamber erred in concluding that Athanase Seromba had not committed extermination as a crime against humanity.[6]

[1] Ntakirutimana Appeal Judgement, para. 516. The Appeals Chamber recalls that the act of killing must occur within the context of a widespread or systematic attack against the civilian population for national, political, ethnic, racial or religious grounds.

[6] See Stakić Appeal Judgement at paragraph 59, where the ICTY Appeals Chamber stated the following:

To avoid such uncertainty and ensure respect for the values of consistency and coherence in the application of the law, the Appeals Chamber must intervene to assess whether the mode of liability applied by the Trial Chamber is consistent with the jurisprudence of this Tribunal. If it is not consistent, the Appeals Chamber must then determine whether the Trial Chamber’s factual findings support liability under another, established mode of liability […].

922. The Appeals Chamber rejects the Appelants’ arguments on this point. It is well established that, while it may be helpful to prove the existence of a policy or plan, that is not a legal element of crimes against humanity.[1] The same applies to “substantial resources”. Contrary to what certain early Tribunal judgements might be taken to imply,[2] “substantial resources” do not constitute a legal element of crimes against humanity. It is the widespread or systematic attack which must be proved.

Paras 589-591: applying the approach in the Kordić and Čerkez Appeal Judgement to cumulative convictions, the Appeals Chamber found that cumulative convictions on the basis of the same acts are permissible in relation to persecutions under Article 5(h) and torture under Article 5(f) of the Statute.

The Appeals Chamber finds that the definition of persecutions contains materially distinct elements not present in the definition of torture under Article 5 of the Statute: the requirements of proof that an act or omission discriminates in fact and proof that the act or omission was committed with specific intent to discriminate. Torture, by contrast, requires proof that the accused caused the severe pain or suffering of an individual, regardless of whether the act or omission causing the harm discriminates in fact or was specifically intended as discriminatory.[1]

159. The Appeals Chamber recalls that persecution as a crime against humanity under Article 5(h) of the ICTY Statute is an act or omission which: (i) discriminates in fact and which denies or infringes upon a fundamental right laid down in international customary or treaty law (actus reus); and (ii) was carried out deliberately with the intention to discriminate on one of the listed grounds, specifically race, religion, or politics (mens rea).[1] In assessing whether speech may constitute an underlying act of persecution, the ICTR Appeals Chamber in the Nahimana et al. case held that “speech inciting to violence against a population on the basis of ethnicity, or any other discriminatory ground, violates the right to security of the members of the targeted group and therefore constitutes ‘actual discrimination’”.[2] It further held that the context in which the underlying act of persecution takes place is particularly important for the purpose of assessing its gravity.[3]

[…]

163. […] The Appeals Chamber also considers that Šešelj’s speech denigrated the Croatians of Hrtkovci on the basis of their ethnicity, in violation of their right to respect for dignity as human beings. In the Appeals Chamber’s view, Šešelj’s speech rises to a level of gravity amounting to the actus reusof persecution as a crime against humanity. […].